Getting past democracy.

• Author: Rubin, Edward L.
• Position: Relationship between the administrative state and the concept of democracy

INTRODUCTION

The tension between our concept of democracy and the government we actually possess is well known, despite our insistent efforts to claim that the term "democracy" accurately describes our governmental system. One area where this tension has been apparent is American constitutionalism. The conflict between our concept of democracy and the institution of judicial review became a political issue when the Supreme Court placed itself in opposition to Progressive Era and New Deal legislation. This same conflict subsequently served as a central concern of the Legal Process School, which indelibly characterized it as the "counter-majoritarian difficulty."(1)

The more far-reaching and intractable source of tension, however, involves the existence of the administrative state. At least since the writings of John Stuart Mill,(2) political and legal thinkers have been acutely aware that the existence of a massive, appointed, and credentialed bureaucracy that carries out the great bulk of the government's activities represents a challenge to our characterization of that government as a democracy.(3) In contemporary constitutional and administrative law scholarship, the bureaucracy has been viewed as a violation of the three branch system specified in the Constitution,(4) an interference with the unitary nature of the presidency,(5) and, more generally, an abandonment of our democratically based commitments to popular sovereignty and public accountability.(6)

Recently, however, legal scholars and political scientists have begun to reassess this issue and to question whether the conflict between democracy and the administrative state is as pervasive or profound as traditionally claimed.(7) By carefully assessing the meaning of the term "democracy," they have concluded that this term does not necessarily carry such strong anti-administrative implications; by carefully assessing the operation of governmental agencies, they have observed that the agencies do not necessarily violate the policies that underlie the scholars' revised understanding of democratic theory. These scholars have often reached their conclusions through a technique that can be called microanalysis--the effort to describe human activities on an operational level, to trace the way that individuals actually interact without relying on overly conceptual generalizations about either society or individual behavior.

This Article is an effort to carry the recent insights about the administrative state's relationship to the concept of democracy one step further, using this same microanalytic technique. It argues that the term "democracy" irretrievably incorporates premodern conceptions of government that do not reflect our genuine political commitments. It is the administrative state, and not the concept of democracy, that embodies these commitments. As soon as we invoke the term "democracy," therefore, we are smuggling outmoded values, that will inevitably conflict with the government we actually possess, into our political discourse. Consequently, this Article proposes that we simply set the term "democracy" aside and cease using it in scholarly discussions of modern government. It then uses microanalysis to propose a different way of looking at contemporary government and, more specifically, at the relationship between that government and its citizens that we now describe in terms of democracy. The Article argues that this relationship can be more accurately described in terms of interaction that occurs through the mechanisms of elections and administration. Describing these interactions without invoking the concept of democracy provides a picture of contemporary government-citizen relations that is fully consonant with the state's administrative character, and that also reflects our genuine political commitments.

Democracy is an "essentially contested concept," in William Connolly's terms, on which agreement can never be achieved.(8) Such disagreement may be frustrating, but it does not destroy the value of the contested term. The term "democracy" can serve as an arena in which contending parties test the strength of their perspectives, or as a prize to be gained by the side that can assert the most convincing arguments. The problem with treating it in this fashion is that the arena it creates is not merely an open space, but a highly structured one that favors some contestants over others, or, more precisely, forces all of them to distort their competitive efforts. It embeds premodern concepts and values that exaggerate the significance of certain political mechanisms, underestimate the significance of others, and generate unwarranted dissatisfaction with the government we actually possess. Like asking the contestants to fight with broadswords or debate in Latin, it privileges antiquarian arguments over those that are more relevant to contemporary conditions.

It is common to condemn aspects of our government as anti-democratic--judicial review is a well known target--but the characteristic features of the administrative state receive even more criticism on this ground. The reason, it will be argued, is not that the administrative state violates our genuine political values, but that the traditional conception of democracy incorporates a variety of anti-administrative sentiments that cannot otherwise be justified. We will think more clearly about the government we actually possess if we abandon the term "democracy" as an instrument of analysis and seek to describe the situations to which it refers in other ways.

There is, of course, a certain danger in this enterprise. Although the meaning of the term "democracy" may be contested, everyone believes in it these days. It is the temple at which all modern political leaders worship. Current debate tends to focus on who is defiling this edifice or claiming entrance when supposedly unjustified in doing so. The point of the following inquiry, however, is not to attack our current form of government. Rather, it is to ask whether the concept of democracy really serves as a good description of that government, or whether it is just a facade that conceals a different reality. Obviously, there is no serious possibility that this term will not continue to be used in political discourse. The point of this Article is to argue that the term should not be used, and certainly not used reflexively, in legal and political analysis.

Part I of this Article discusses the original meaning and subsequent evolution of the term "democracy." Part II traces the way this traditional concept of democracy has insinuated itself into contemporary democratic theory and undermined its relevance. In Parts III and IV, an alternative description of modern government is advanced, using the concept of interaction in place of democracy. Part III discusses electoral interactions, and Part IV discusses interactions at the administrative level.

1. THE EVOLUTION OF THE TERM "DEMOCRACY"

   1. Democracy and Direct Democracy

      The term "democracy" comes from ancient Greece.(9) It disappeared as a practice with the rise of the Roman Empire and as a concept with the Empire's decline, re-entering European thought only when Aristotle's Politics(10) was translated into Latin by William of Moerbeke around 1260.(11) Discussion of democracy became part of Western culture at that time and has continued in an unbroken and ever-expanding stream until the present day.

      When Aristotle wrote about democracy, he meant direct democracy, in which all citizens are "to rule and be ruled in turn."(12) Thus, a government is a democracy to the extent

      that the appointment to all offices, or to all but those which require experience and skill, should be made by lot; ... that no one should hold the same office twice, or not often, except in the case of military offices; that the tenure of all offices, or of as many as possible, should be brief; ... that the assembly should be supreme over all causes, or at any rate over the most important, and the magistrates over none or only over a very few.(13) When these conditions are not satisfied--when most offices are filled by election, are held for long terms, or involve an extensive policymaking role--the government is not a democracy but an oligarchy, even if all the citizens participate in the elections. In fact, "when only selected individuals and not the whole people share in the deliberations of the state, then, although ... [these individuals] observe the law, the government is a pure oligarchy."(14) Sparta's constitution is a mixture of democracy and oligarchy, in Aristotle's view, because in addition to its democratic elements, such as the fact that all the citizens eat the same food and wear similar clothing, it has a number of oligarchic elements: "that all offices are filled by election and none by lot, is one of these oligarchical characteristics; that the power of inflicting death or banishment rests with a few persons is another."(15)

      Until the late eighteenth century, the term "democracy" retained this Aristotelian association with direct democracy.(16) The difficulty with the term's adoption into the Western political tradition is that it is not very useful--it has no relationship to any government that has ever existed in the post-classical, Western world. As Benjamin Constant and, more recently, Giovanni Sartori have noted, the Greek polis was really a community rather than a modern state.(17) At the time the Politics was translated, a few small republics, such as the Swiss cantons and the city-states of northern Italy and the Netherlands, bore a superficial resemblance to Aristotle's democracies. Their governmental structure was quite different, however, and, in any case, they proved to be a dead end in the development of Western government.(18) The modern nations that we characterize as democracies are, of course, representative governments, and the disjunction between direct democracy and...